Glos v. Shedd

Mr. Justice Ricks delivered the opinion of the court: Separate errors are assigned upon the record by Glos and Barber, by their attorney, Enoch J. Price, but all the errors are argued under one head. It is insisted that the record disregards all established practice, giving defendant in error a decree wiping out the tax title without reimbursement and assessing all costs against the tax buyer, Glos. It is also insisted that various allegations of the bill were found to be true by the decree when there was no evidence to support them, that Barber is not in default, and that it was error to take the bill pro confesso as to him. It is further insisted that if the default is held proper it should be reversed with directions to reimburse Barber for money paid for taxes and interest and his costs in the court below, and that as to Glos the decree should be reversed with directions to dismiss him with his costs. The abstract filed in this court by plaintiffs in error is so meagre that it is impossible to determine whether or not the evidence was sufficient, in all respects, to sustain all the findings in the decree. Upon the margin of the pages in the abstract referring to the record it is shown that thirty-nine pages of evidence were taken by the defendant in error, complainant below, and abstracted in less than four pages, without any exhibits being abstracted, but the references to the record are simply as to such exhibits. This is not a compliance with the rules of this court in abstracting a case, and as was said in Illinois Nat. Bank v. Trustees of Schools, 211 Ill. 506, “in the absence of such showing we must presume that the chancellor heard sufficient evidence upon which to base his findings and decree.” As to the plaintiff in error Glos, we think the court was justified in decreeing the costs against him. There can be but little doubt, from a review of this record, that Glos’ whole scheme was to delay and hinder the proceedings in this case. After answering, and, as he contends, disclaiming any interest whatever, he insisted upon going before the master and introducing evidence, and before filing the disclaimer he filed a demurrer both to the original and amended bills, and interposed before the master in chancery objections and made defenses which he had no right to interpose. Under these conditions a court of equity is justified in taxing the costs to the party who insists upon making the costs and remaining a party to the proceeding when he could have been dismissed from the cause upon his own motion. A court of equity is justified in going to extremes to mete out justice when such practices are resorted to as are shown by this record, to delay and hinder its proceedings. No one can read this record without becoming convinced that the transfer quit-claim to Barber,—if there was, in fact, such a person as Barber,—was but a scheme to annoy the complainant. We think the decree is equitable, in all respects, in its findings in reference to Glos. As to the objections interposed by the plaintiff in error Barber, no effort was made to obtain a vacation of the decree pro confesso, and after his appearance by attorney the court was justified in treating the decree pro confesso as binding and conclusive against him at the time it entered the final decree. (Staunton Coal Co. v. Menk, 197 Ill. 369; Andrews v. Campbell, 94 id. 577; Ryder v. Twiss, 3 Scam. 4.) He never appeared in person to testify before the master or object to the decree defaulting him. No answer was set up by him claiming any interest in the premises under the deed from Glos to him or the tax deed to Glos, nor was any' money claimed or reimbursement asked for taxes paid, etc. So far as Barber is concerned the decree is in accord with the averments in the bill, as will be seen from the allegations of the bill and the findings of the decree as set forth, and as was said in Dunfee v. Mutual Building Ass. 206 Ill. 133: “Under a decree pro confesso a defendant cannot, on error, allege the want or insufficiency of the testimony, or the insufficiency or amount of the evidence that may have been heard by the court entering the decree. Where the defendants are persons not under disability, and a default is entered, a decree pro confesso follows as a matter of course. Such decree, if warranted by the averments of the bill, is unassailable,”—citing Monarch Brewing Co. v. Wolford, 179 Ill. 252, and Roby v. Chicago Title and Trust Co. 194 id. 228. The decree finds that the taxes for the year 1895, and for which the sale was made upon which the Glos deed is predicated, were in fact paid by Elliott, the then owner of the land and who was at that time in possession of the same. If this finding in the decree be true, as we must assume it is under the state of this record, the sale was illegal and void ab initio. (Perkins v. Bulkley, 166 Ill. 229.) It was not in contemplation of the statute or the requirements of equity that defendant in error, in order to remove the cloud of such void sale, should reimburse any person for the taxes which had already been paid by the owner, and for which the land was illegally sold. The statute is, that the holder of the tax deed should be reimbursed for all taxes, legal costs and penalties as shall have been properly paid. (Hurd’s Stat. 1903, chap. 120, sec. 224.) If the taxes were paid by the owner before the sale then there was no delinquency, and the alleged purchaser, Glos, did not properly pay any taxes within the contemplation of the statute, and was not entitled to be reimbursed for any payment so made. Wilmerton v. Phillips, 103 Ill. 78; Langlois v. Cameron, 201 id. 301. We are unable to find any error that would justify a reversal of the decree as entered by the chancellor. The decree is equitable in all respects under the conditions appearing from this record, and it is accordingly affirmed. Decree affirmed.